lacks an air of reality, evidence of an accused’s anger, excitement
or instinctive reaction, which can have an impact on an accused’s
state of mind, is relevant to proof of the mental element in murder and the jury should be so instructed. This ensures that jurors
do not take a compartmentalized rather than a holistic approach
to the evidence relevant to the state of mind issue.
 In this case, the respondent says, there was no air of
reality to self-defence, or the statutory partial defence of provocation. What is more, since the appellant did not testify or
call any evidence, the record is barren of any evidence of anger,
fear, excitement, instinctive reaction or mental disturbance to
fund a “rolled up” instruction.
 The respondent makes two further points.
 The first is that there is no mandatory word formula
required for a “rolled up” instruction. What must be decided is
whether the charge, considered as a whole and in light of what
occurred at trial, including the positions advanced by counsel,
adequately tutored the jury on their obligation to consider all the
evidence on the issue of the mental element. Considered in this,
the proper light, the instructions fulfilled their function.
 The second is that the jury had available, and were invited
to review the real evidence provided by the video surveillance.
This, coupled with the instructions given, which generally and
specifically underscored the jury’s obligation to consider all the
evidence, provided the functional equivalent of a “rolled up”
instruction and well equipped this jury to perform its task.
The governing principles
 Whether either mental or fault element in s. 229(a) has
been established with the required degree of certainty is
a question of fact for the trier of fact to decide. In a jury trial,
the jury makes this decision. And it makes this decision on the
basis of the whole of the evidence adduced at trial, and by
drawing reasonable inferences from that evidence. The evidence must be relevant to this material issue and properly
admissible in its proof. Most often, the evidence is circumstantial. The task assigned to the jury on this issue is to assess the
cumulative effect of all the evidence against the standard of
proof required to determine whether it is adequate to the task
or falls short of the mark. The standard of proof applies to the
evidence as a whole, not to each individual item of evidence:
R. v. Flores,  O.J. No. 870, 2011 ONCA 155, 269 C.C.C.
(3d) 194, at para. 69.
 Among the items of evidence offered in proof of an
accused’s state of mind is evidence of things said and done by the